Ord. No. 20 of 2004
CLEARING AND SETTLEMENT SYSTEMS
ORDINANCE
A841
CLEARING AND SETTLEMENT SYSTEMS ORDINANCE
CONTENTS
Section
Page
PART 1
PRELIMINARY
1.
2.
Short title and commencement ........................................................................
Interpretation ..................................................................................................
A847
A847
3.
Application .....................................................................................................
A853
PART 2
DESIGNATION
AND
OVERSIGHT
Division 1—Designation
4.
Monetary Authority may designate clearing and settlement systems .............
A855
5.
Revocation of designation ..............................................................................
A857
Division 2—Obligations of designated systems
6.
7.
8.
Obligation to inform Monetary Authority of name and address, etc. ............
Requirements applying to designated systems ................................................
Safety and efficiency .......................................................................................
A859
A859
A861
Division 3—Matters pertaining to functions and
powers of Monetary Authority
9.
Functions of Monetary Authority ..................................................................
A863
10.
11.
12.
Power of Chief Executive to give directions ....................................................
Power of Monetary Authority to exempt .......................................................
Monetary Authority may request information or documents .........................
A863
A865
A865
13.
14.
Monetary Authority may give directions ........................................................
Monetary Authority may impose operating rules ...........................................
A867
A867
PART 3
FINALITY
OF
TRANSACTIONS
AND
PROCEEDINGS
Division 1—Interpretation
15.
Interpretation ..................................................................................................
A869
CLEARING AND SETTLEMENT SYSTEMS
ORDINANCE
Ord. No. 20 of 2004
Section
A843
Page
Division 2—Certificate of finality
16.
Monetary Authority may issue certificate of finality ......................................
A871
17.
Suspension or revocation of certificate of finality ...........................................
A873
Division 3—Finality of transactions and proceedings
within designated systems
18.
19.
Scope of modification of law of insolvency under this Division .....................
Transfers and settlements within designated systems are final ........................
A873
A875
20.
21.
Proceedings of designated systems take precedence over law of insolvency ...
Abrogation of statutory provisions relating to disclaimer of property, restriction
on dispositions of property, etc. ..................................................................
Abrogation of statutory powers relating to adjustment of prior transactions
A875
A877
A877
Net sum payable on completion of default arrangements provable in insolvency
proceedings ..................................................................................................
A879
Transfer orders entered into designated system after insolvency not affected
A879
22.
23.
24.
Division 4—Netting of obligations of insolvent participants
25.
Netting may be effected ..................................................................................
A881
Division 5—Miscellaneous
26.
27.
28.
A883
A883
30.
Law of insolvency in other jurisdictions .........................................................
Preservation of rights, etc. in underlying transactions ....................................
Right of relevant insolvency office-holder to recover gain from transaction at
undervalue between 2 participants ..............................................................
Right of relevant insolvency office-holder to recover transfer between 2
participants giving unfair preference ...........................................................
Duty to report on completion of default proceedings .....................................
31.
Obligation of participant to notify of bankruptcy or winding up ...................
A891
32.
Order releasing relevant insolvency office-holder from obligations in relation
to default proceedings .................................................................................
A891
Enforcement of judgments over property of participant as judgment debtor
A891
29.
33.
A883
A885
A889
PART 4
APPEALS TRIBUNAL
34.
Establishment of Clearing and Settlement Systems Appeals Tribunal ............
A893
35.
36.
37.
38.
Review of decisions by Tribunal .....................................................................
Powers of Tribunal .........................................................................................
Use of incriminating evidence given under compulsion ..................................
Contempt dealt with by Tribunal ...................................................................
A895
A897
A901
A901
CLEARING AND SETTLEMENT SYSTEMS
ORDINANCE
Ord. No. 20 of 2004
Section
39.
40.
A845
Page
Appeal to Court of Appeal .............................................................................
Power of Chief Justice to make rules ..............................................................
A903
A905
PART 5
OFFENCES
41.
42.
Contravention of provisions of Part 2 ............................................................
Contravention of provisions of Part 3 ............................................................
A905
A907
43.
44.
Contravention of provision of Part 4 ..............................................................
Contravention of provisions of Part 6 ............................................................
A907
A907
45.
46.
47.
Giving false information to Monetary Authority ...........................................
Misrepresentation in respect of designated system .........................................
False entry in document ..................................................................................
A909
A909
A911
48.
Liability of company officers ..........................................................................
A911
PART 6
MISCELLANEOUS
49.
50.
51.
52.
53.
54.
Power of Monetary Authority to make regulations ........................................
Confidentiality ................................................................................................
Immunity .........................................................................................................
Power of Monetary Authority to require information to be given .................
Requirement to give information relating to default ......................................
Guidelines .......................................................................................................
A913
A913
A917
A919
A919
A921
55.
56.
57.
58.
Systems deemed to have been designated .......................................................
Service of notices .............................................................................................
Amendment of Schedules ................................................................................
Notices, etc. as subsidiary legislation ..............................................................
A921
A921
A923
A923
Consequential Amendments
Electronic Transactions Ordinance
59.
Proceedings in relation to which sections 5, 5A, 6, 7 and 8 of this Ordinance
do not apply under section 13(1) of this Ordinance ....................................
A925
Schedule 1 Provisions relating to Clearing and Settlement Systems Appeals Tribunal .
Schedule 2 Clearing and settlement systems deemed to have been designated ..............
A925
A929
Ord. No. 20 of 2004
CLEARING AND SETTLEMENT SYSTEMS
ORDINANCE
A847
HONG KONG SPECIAL ADMINISTRATIVE REGION
ORDINANCE NO. 20 OF 2004
L.S.
TUNG Chee-hwa
Chief Executive
8 July 2004
An Ordinance to provide for certain clearing and settlement systems for funds
or securities to be subject to oversight by the Monetary Authority; for the
modification of the laws of Hong Kong in their application to
transactions effected through and proceedings within such clearing and
settlement systems so as to ensure finality as regards those transactions
and proceedings; and for related purposes.
[
]
Enacted by the Legislative Council.
PART 1
PRELIMINARY
1.
Short title and commencement
(1) This Ordinance may be cited as the Clearing and Settlement Systems
Ordinance.
(2) This Ordinance shall come into operation on a day to be appointed
by the Secretary for Financial Services and the Treasury by notice published in
the Gazette.
2.
Interpretation
In this Ordinance, unless the context otherwise requires—
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“applicant” (申請人), in relation to any proceedings under Part 4, means the
person who refers a decision to the Tribunal for review under section
35(1);
“book-entry securities” (記帳證券) means any securities issued under any law
transferable by a book-entry (whether on a register or of any other kind);
“certificate of finality” (終局性證明書) means a certificate issued by the
Monetary Authority under section 16(3);
“Chairman of the Tribunal” (審裁處主席) means the person appointed as such
under section 34(3);
“clearing and settlement system” (結算及交收系統) means a system established
for—
(a) the clearing or settlement of payment obligations; or
(b) the clearing or settlement of obligations for the transfer of bookentry securities, or the transfer of such securities;
“collateral security” (附屬抵押品), in relation to a clearing and settlement
system, means any realizable assets provided, whether under a charge or a
re-purchase or similar agreement or otherwise (including money provided
under a charge), for the purpose of securing rights and obligations
potentially arising in connection with participation in the system;
“default arrangements” (違責處理安排), in relation to a clearing and settlement
system, means the arrangements in place within the system for limiting
systemic and other types of risk in the event of a participant appearing to
be, or likely to become, unable to meet his obligations in respect of a
transfer order; and, without affecting the generality of the foregoing,
includes any arrangements for—
(a) the netting of obligations owed to or by the participant;
(b) the closing out of open positions held by the participant; or
(c) the realizing of collateral security securing obligations owed by
the participant;
“defaulting participant” (違責參與者), in relation to a clearing and settlement
system, means a participant in respect of whom action has been taken by
the system operator or settlement institution under the system’s default
arrangements;
“designated system” (指定系統) means a clearing and settlement system that
has been designated for the purposes of this Ordinance by the Monetary
Authority under section 4(1);
“directors’ voluntary winding up statement” (董事自動清盤陳述書) means a
statement made under section 228A(1) of the Companies Ordinance (Cap.
32), and a reference to such a statement taking effect is a reference to it
being delivered for registration as specified in section 228A(3) of that
Ordinance;
“disposition of property” (財產產權處置), in the context of a disposition made
to or by a participant in a designated system, includes a payment made to
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or by the participant in the designated system or in a clearing and
settlement system, wherever located, that is utilized by the designated
system to effect payments;
“Monetary Authority” (金 融 管 理 專 員 ) means the Monetary Authority
appointed under section 5A of the Exchange Fund Ordinance (Cap. 66);
“netting” (淨額計算), in relation to a clearing and settlement system, means the
conversion of the various obligations owed to or by a participant, as
between that participant and all the other participants in the system, into
one net obligation owed to or by the participant;
“obligations” (義務), in the context of the default arrangements under a
clearing and settlement system, means obligations resulting from the issue
and receipt of transfer orders between participants, or otherwise resulting
from action taken under the operating rules of the system;
“officer” (高級人員), in relation to a corporation, means a director, manager or
secretary of, or any other person involved in the management of, the
corporation and, where the corporation is a system operator or settlement
institution of a designated system, means in addition the chief executive of
the designated system;
“operating rules” (運作規則), in relation to a clearing and settlement system,
means the rules or terms that govern the functioning or operations of the
system;
“participant” (參與者), in relation to a clearing and settlement system, means a
person who for the time being is a party to the arrangement by which the
system is established;
“relevant insolvency office-holder” (有關破產清盤人員) means—
(a) the Official Receiver appointed under section 75 of the
Bankruptcy Ordinance (Cap. 6);
(b) a person acting under the laws of Hong Kong in relation to a
company as its liquidator, provisional liquidator, receiver or
manager or an equivalent officer;
(c) a person acting under the laws of Hong Kong in relation to an
individual as his trustee in bankruptcy or interim receiver of his
property or an equivalent officer; or
(d ) a person appointed under the laws of Hong Kong pursuant to an
order for the administration in bankruptcy of an insolvent estate
of a deceased person;
“resolution for voluntary winding up” (自動清盤決議) means a resolution under
section 228(1)(c) of the Companies Ordinance (Cap. 32);
“settlement account” (交收帳戶), in relation to a clearing and settlement
system, means an account at a settlement institution used to hold funds or
securities (or both) and to settle transfer orders between participants in
the system;
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“settlement institution” (交收機構), in relation to a clearing and settlement
system, means a person providing settlement accounts to the participants
and to any central counterparty in the system for the settlement of
transfer orders within the system and, as the case may be, for extending
credit to such participants and any such central counterparty for
settlement purposes;
“system operator” (系統營運者), in relation to a clearing and settlement system,
means any person who, for the purposes of the system’s operating rules, is
responsible for the operation of the clearing or settlement functions of the
system;
“transfer order” (轉撥指令), in relation to a clearing and settlement system,
means either of the following instructions—
(a) an instruction—
(i) by a participant to place at the disposal of another
participant an amount of money by means of a book-entry
on the accounts of a settlement institution for the system; or
(ii) which results in the assumption or discharge of a payment
obligation for the purposes of the operating rules of the
system; or
(b) an instruction by a participant either to settle an obligation for
the transfer of book-entry securities, or for the transfer of such
securities;
“Tribunal” (審裁處) means the Tribunal established under section 34(1).
3.
Application
This Ordinance applies to and in relation to—
(a) a designated system that is established in a place outside Hong
Kong;
(b) a system operator or settlement institution of, or a participant
in, a designated system who, being an individual, is outside
Hong Kong;
(c) a system operator or settlement institution of, or a participant
in, a designated system that, being a corporation, is incorporated
in a place outside Hong Kong; or
(d ) an officer of a corporation that is a system operator or
settlement institution of, or a participant in, a designated system
who is outside Hong Kong,
as it applies to and in relation to such a system that is established in Hong
Kong, such an individual who is in Hong Kong, such a corporation that is
incorporated in Hong Kong, or such an officer of a corporation who is in
Hong Kong.
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ORDINANCE
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A855
PART 2
DESIGNATION
AND
OVERSIGHT
Division 1—Designation
4.
Monetary Authority may designate clearing
and settlement systems
(1) The Monetary Authority may, by notice published in the Gazette,
designate for the purposes of this Ordinance any clearing and settlement
system described in subsection (2) if, in the opinion of the Monetary
Authority, the system is or is likely to become a clearing and settlement system
whose proper functioning is material to the monetary or financial stability of
Hong Kong or to the functioning of Hong Kong as an international financial
centre.
(2) A clearing and settlement system is a system referred to in subsection (1)
if—
(a) it is in operation in Hong Kong; or
(b) it accepts for clearing or settlement transfer orders denominated
in Hong Kong dollars,
and if it is not a system that is, or is operated by, a company recognized as a
clearing house under section 37(1) of the Securities and Futures Ordinance
(Cap. 571).
(3) For the purposes of subsection (1), a clearing and settlement system
shall be regarded as a clearing and settlement system whose proper functioning
is material to the monetary or financial stability of Hong Kong, or to the
functioning of Hong Kong as an international financial centre, if the
occurrence of any significant disruption to, or the presence of any significant
inefficiency in, the functioning of the system is likely to result in the monetary
or financial stability of Hong Kong, or the functioning of Hong Kong as an
international financial centre, being adversely affected; and reference in that
subsection to a clearing and settlement system that is likely to become a
clearing and settlement system whose proper functioning is material to the
monetary or financial stability of Hong Kong, or to the functioning of Hong
Kong as an international financial centre, shall be construed accordingly.
(4) Without limiting the effect of subsection (1) or (3), the Monetary
Authority may, for the purpose of determining whether a clearing and
settlement system is or is likely to become a clearing and settlement system
whose proper functioning is material to the monetary or financial stability of
Hong Kong, or to the functioning of Hong Kong as an international financial
centre, have regard to any one or more of the following factors as they then
apply or appear likely to apply—
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(a) the estimated aggregate value of transfer orders cleared or
settled through the system in a normal business day;
(b) the estimated average value of transfer orders cleared or settled
by the system in a normal business day;
(c) the estimated number of transfer orders cleared or settled by the
system in a normal business day;
(d ) the estimated number of participants of the system; and
(e) whether such system is linked to any designated system or any
clearing and settlement system that is or is operated by a
company recognized as a clearing house under section 37(1) of
the Securities and Futures Ordinance (Cap. 571).
(5) If the Monetary Authority is minded to designate a clearing and
settlement system under this section he shall—
(a) publish in the Gazette notice of his intention to designate the
system, stating the grounds on which the designation is to be
made; and
(b) allow such period as is specified in the notice, being a period of
not less than 14 days, within which any system operator or
settlement institution of the system may be heard, or may make
representations, as to why the system should not be designated.
5.
Revocation of designation
(1) The Monetary Authority may at any time, by notice published in the
Gazette, revoke the designation of a designated system if—
(a) he is satisfied that the system is not a clearing and settlement
system as is described in section 4(2); or
(b) the system has ceased to be or to be likely to become, in his
opinion, a clearing and settlement system whose proper
functioning is material to the monetary or financial stability of
Hong Kong, or to the functioning of Hong Kong as an
international financial centre, for the purposes of section 4(1).
(2) Not less than 14 days before revoking the designation of a designated
system, the Monetary Authority shall by notice published in the Gazette give
notice of his intention to revoke the designation and shall specify in the notice
the grounds under subsection (1) on which he intends to do so; and any system
operator or settlement institution of the designated system who so requests by
notice in writing given to the Monetary Authority before the revocation takes
effect shall be allowed an opportunity by the Monetary Authority to be heard
or to make representations as to why the grounds for revocation specified in
the notice given under this subsection have not been made out.
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(3) A revocation of the designation of a designated system effected under
this section shall not operate so as to affect any settlement of a transfer order
effected through the system prior to the revocation taking effect.
Division 2—Obligations of designated systems
6.
Obligation to inform Monetary Authority of name
and address, etc.
(1) Every person who, at the time of designation of a clearing and
settlement system under this Ordinance, is a system operator or settlement
institution of the system shall, within 6 days of the designation, inform the
Monetary Authority in writing of—
(a) his name, his place of business, a postal address and an
electronic mail address;
(b) the aspects of the management or operations of the system for
which he is responsible; and
(c) in addition, where the person is a corporation, the names and
particulars of the directors and shareholders of the corporation
and the name and particulars of the chief executive (if any) of the
corporation.
(2) Where, subsequent to the designation of a clearing and settlement
system, there is any change to the particulars given or required to be given to
the Monetary Authority under subsection (1) in respect of the system, every
person to whom such change relates shall within 6 days of the change taking
effect inform the Monetary Authority in writing of the change.
7.
Requirements applying to designated systems
(1) Every system operator and settlement institution of a designated
system shall ensure that the following requirements are complied with in
relation to the system, namely—
(a) that the operations of the system are conducted in a safe and
efficient manner calculated to minimize the likelihood of any
disruption to the functioning of the system;
(b) that there are in place operating rules that—
(i) comply with the requirements specified in subsection (2)
and with any prescribed requirements relating to the
operating rules of a designated system; and
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(ii) provide for the system to be operated in accordance with
this Ordinance as it applies in relation to that system;
(c) that there are in place adequate arrangements to monitor and
enforce compliance with the operating rules of the system,
including arrangements regarding the resources available to the
system operator;
(d ) that there are available to the system financial resources
appropriate for the proper performance of the system’s
particular functions.
(2) The operating rules of a designated system shall—
(a) impose on participants requirements that are no less stringent
than the requirements imposed on participants under the other
provisions of this Ordinance;
(b) provide that if a participant becomes insolvent he may be
suspended from the system; and
(c) provide for default arrangements which are appropriate and
adequate for the system in all circumstances.
(3) No change shall be made to the operating rules of a designated
system without the prior approval in writing of the Monetary Authority.
8.
Safety and efficiency
(1) In this Ordinance, reference to the safety of a clearing and settlement
system includes in particular reference to—
(a) the extent to which the operating rules of the system provide for
certainty as to the circumstances under which transfer orders
effected through the system are to be regarded as settled for the
purposes of the system;
(b) the reliability and robustness of operation of the system;
(c) control over access to the operations of the system; and
(d ) the integrity of information held within the system.
(2) In this Ordinance, reference to the efficiency of a clearing and
settlement system includes in particular reference to—
(a) the speed and efficiency with which operations relating to
transfer orders within the system are carried out;
(b) the overall cost to a participant of his participation in the
system, having regard to the services provided by the system to
its participants;
(c) the reasonableness of criteria for admission as a participant in
the system; and
(d ) generally, the absence of measures having the effect of unfairly
limiting, or exploiting the absence of, competition in relation to
the functions performed by the system.
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Division 3—Matters pertaining to functions and powers of
Monetary Authority
9.
Functions of Monetary Authority
(1) It shall be the function of the Monetary Authority under this
Ordinance to monitor compliance with the obligations imposed under this
Ordinance in relation to designated systems, and to promote the general safety
and efficiency of designated systems.
(2) Without limiting the generality of subsection (1), it shall be the
function of the Monetary Authority—
(a) to take reasonable steps to satisfy himself that every designated
system is operated in a safe and efficient manner;
(b) to promote and encourage proper standards of operation and
sound and prudent practices amongst designated systems;
(c) whenever appropriate, to co-operate with and assist recognized
financial services supervisory authorities of Hong Kong or of
any place outside Hong Kong in maintaining and promoting
safety and efficiency in the operations of designated systems; and
(d ) to consider and propose reforms of the law relating to clearing
and settlement systems and the operations of designated systems.
(3) The Monetary Authority may appoint persons as advisers or
consultants to assist him in the performance of his functions under this
Ordinance.
10. Power of Chief Executive to give directions
(1) After consulting the Monetary Authority, the Chief Executive may,
on being satisfied that it is in the public interest to do so, give the Monetary
Authority such written directions as he thinks fit as to the performance of any
function of the Monetary Authority under this Ordinance.
(2) The Monetary Authority shall comply with any direction given under
subsection (1).
(3) If a direction is given under subsection (1), a requirement in an
Ordinance that the Monetary Authority shall—
(a) form any opinion;
(b) be satisfied as to any matter (including the existence of particular
circumstances); or
(c) consult any person,
for the purpose of performing any function to which the direction relates, does
not apply for any purpose connected with the performance of that function
pursuant to or consequent upon the direction.
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11. Power of Monetary Authority to exempt
(1) This section applies to a designated system that is established in a
place outside Hong Kong and is under the supervision of an authority
exercising functions in that place similar to the functions of the Monetary
Authority under this Ordinance.
(2) Where the Monetary Authority is satisfied that the scope and nature
of the supervision exercised in relation to any designated system to which this
section applies by the authority in the place outside Hong Kong is sufficient to
achieve any or all of the objectives of this Part in relation to the system, the
Monetary Authority may exempt any person from any or all of the obligations
imposed on the person under Divisions 2 and 3 of this Part, or from any
obligation arising by virtue of the exercise of any power conferred under those
Divisions, in relation to the system.
(3) In addition to any exemption granted under subsection (2) in relation
to a designated system, the Monetary Authority may exempt the system
operator or settlement institution of the designated system from the
application of section 30 or 53, or may exempt the participants of the system
from the application of section 31; and where such an exemption in relation to
section 30, 31 or 53 is in effect, that section shall not apply in relation to the
system operator, settlement institution or participants to whom the exemption
applies.
(4) Where the Monetary Authority has granted (or has varied or
withdrawn) an exemption under this section in any case, he shall publish in the
Gazette notice of the particulars of that grant (or variation or withdrawal) of
exemption.
12. Monetary Authority may request information
or documents
(1) For the better carrying out of his functions under this Ordinance, the
Monetary Authority may by notice in writing given to a system operator or
settlement institution of a designated system request the system operator or
settlement institution to give him such information or documents relating to
the system as may be specified in the notice.
(2) A request made under subsection (1) may specify a period, being a
period that is reasonable in the circumstances, within which the request shall
be complied with.
(3) For the avoidance of doubt, the power conferred under subsection (1)
to request information or documents relating to a designated system includes
the power to request such information or documents as the Monetary
Authority considers necessary to allow him to determine whether there is or
has been compliance with the provisions of this Ordinance in relation to the
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Ord. No. 20 of 2004
A867
system and, accordingly, a request made under subsection (1) may specify the
giving of information or documents on a periodic basis or at any time and
regardless of whether the Monetary Authority has reason to suspect that there
is, has been or may be any failure to comply with a provision of this Ordinance
as regards the system.
13. Monetary Authority may give directions
(1) The Monetary Authority may by notice in writing given to a system
operator or settlement institution of a designated system direct that person to
take such action or do such act or thing as the Monetary Authority considers
necessary for bringing the designated system into compliance with the
requirements set out in section 7(1)(a), (b), (c) or (d ).
(2) A direction given under subsection (1)—
(a) shall specify the action to be taken or the act or thing to be done;
(b) shall include a statement of the respect in which the Monetary
Authority considers the designated system not to be in
compliance with a requirement set out in section 7(1)(a), (b), (c)
or (d ); and
(c) may specify a period, being a period that is reasonable in the
circumstances, within which the direction shall be complied with.
14. Monetary Authority may impose operating rules
(1) Without affecting the generality of section 13, the Monetary
Authority may by notice in writing given to a system operator or settlement
institution of a designated system direct that the operating rules of the system
be amended in such manner as the Monetary Authority considers necessary to
bring the operating rules into compliance with section 7(1)(b).
(2) A direction given under subsection (1)—
(a) shall specify the amendment to be effected;
(b) shall include a statement of the respect in which the Monetary
Authority considers the operating rules of the system not to be
in compliance with section 7(1)(b); and
(c) may specify a period, being a period that is reasonable in the
circumstances, within which the amendment shall be effected,
and may require that within a further period of 3 days a copy of
the relevant part of the operating rules as so amended shall be
provided to the Monetary Authority as confirmation of
compliance with the direction.
(3) Without affecting the generality of subsection (1), a direction under
that subsection to amend a designated system’s operating rules may include a
direction to amend those rules by—
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(a) adding a rule specified in the direction;
(b) amending a particular rule in the manner specified in the
direction; or
(c) deleting a rule specified in the direction.
(4) Before giving a direction under subsection (1), the Monetary
Authority shall consult the Financial Secretary and the system operator or
settlement institution to whom the direction relates.
(5) If there is any failure to comply with a direction given under this
section, the Monetary Authority may by notice published in the Gazette
declare that the operating rules of the designated system shall be amended in
the manner specified in the direction, and the operating rules of the system
shall as from the time of publication of such have effect as if they had been so
amended.
PART 3
FINALITY
OF
TRANSACTIONS
AND
PROCEEDINGS
Division 1—Interpretation
15. Interpretation
(1) In this Part, other than section 26, a reference to the law of
insolvency shall be construed as a reference to—
(a) the Bankruptcy Ordinance (Cap. 6);
(b) Parts V, VI and X of the Companies Ordinance (Cap. 32); and
(c) any other written law or rule of law of Hong Kong which is
concerned with or in any way related to the bankruptcy, winding
up or insolvency of a person,
or, for the purposes of the application by a court in Hong Kong (in accordance
with the rules of private international law) of the laws of a place outside Hong
Kong, as a reference to any written law or rule of law of the place outside
Hong Kong which is concerned with or in any way related to the bankruptcy,
winding up or insolvency of a person.
(2) In this Part, unless the context otherwise requires, a reference to
bankruptcy or winding up shall be construed as a reference to bankruptcy or
winding up under the laws of Hong Kong.
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Division 2—Certificate of finality
16. Monetary Authority may issue certificate of finality
(1) Where a clearing and settlement system has been designated under
Part 2, the Monetary Authority shall determine in accordance with subsection
(2) whether the following criteria are met as regards that system, namely—
(a) ultimate settlement of transfer orders is effected within the
system itself; and
(b) there is compliance with the requirements stipulated in
section 7(1).
(2) In making a determination under subsection (1) the Monetary
Authority—
(a) shall have regard to such information relating to the system as
may be submitted to him by the system operator for the
purposes of this section; and
(b) may in addition have regard to such other information in his
possession relating to the system as he considers relevant,
but the Monetary Authority shall not be under any obligation to undertake
any enquiries for the purpose of making the determination.
(3) If the Monetary Authority determines that the criteria specified in
subsection (1) have been met as regards a designated system, he shall issue in
respect of the system a certificate certifying to that effect (“certificate of
finality”) and specifying a date and time from which the certificate shall have
effect.
(4) If the Monetary Authority finds himself unable to make a
determination in the terms mentioned in subsection (3) as regards a designated
system, he shall inform the system operator in writing accordingly giving
particulars of the respect in which any of the criteria specified in subsection (1)
have not been met or of the further information he requires in order to make a
determination in relation to such criteria.
(5) Except for the period of any suspension under section 17(1), a
certificate of finality in respect of a designated system remains in effect until it
is revoked or until the designation of the system for the purposes of this
Ordinance has been revoked.
(6) Except as otherwise provided, the following provisions of this Part
apply to and in relation to any designated system in respect of which a
certificate of finality is in effect; and in Divisions 3, 4 and 5 of this Part, a
reference to a designated system is a reference to such a designated system.
(7) The Monetary Authority shall publish in the Gazette notice of any
certificate of finality issued under this section.
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17. Suspension or revocation of certificate of finality
(1) The Monetary Authority may at any time by notice in writing, with
effect from a date and time specified in the notice, suspend or revoke a
certificate of finality in respect of a designated system if he is of the opinion
that, as regards that system—
(a) any one or more of the criteria specified in section 16(1)(a) or (b)
are no longer met; or
(b) there has been any contravention of section 6(2), 7(3), 12, 13, 14,
45 or 53(4).
(2) Before suspending or revoking a certificate of finality under this
section the Monetary Authority shall—
(a) notify in writing the system operator and settlement institution
of his intention to suspend or revoke the certificate of finality
and the grounds on which the suspension or revocation is to be
made; and
(b) allow such period as is specified in the notice, being a period of
not less than 14 days, within which the system operator or
settlement institution may be heard or may make representations
as to why the certificate of finality should not be suspended or
revoked.
(3) The Monetary Authority shall publish in the Gazette notice of any
suspension or revocation of a certificate of finality effected under this section.
Division 3—Finality of transactions and proceedings within
designated systems
18. Scope of modification of law of insolvency
under this Division
(1) The law of insolvency shall have effect in relation to—
(a) transfer orders effected through a designated system;
(b) action taken under the operating rules of a designated system
with respect to such orders; and
(c) collateral security,
subject to the provisions of this Division.
(2) This Division shall apply in relation to bankruptcy and winding up
proceedings in respect of a participant, but shall not apply in relation to
bankruptcy and winding up proceedings in respect of any person who is not a
participant.
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(3) For the avoidance of doubt, notwithstanding that rights or liabilities
arising from transfer orders as mentioned in subsection (1)(a) are or may be
dealt with in bankruptcy and winding up proceedings, this Division shall not
apply to such proceedings if they are in respect of any person who is not a
participant.
19. Transfers and settlements within designated
systems are final
(1) This section applies to any transfer or settlement of the following
description that is effected through a designated system the operating rules of
which provide that such a transfer or settlement is final and irrevocable—
(a) a transfer of funds into or out of an account of a participant;
(b) a settlement of a payment obligation; or
(c) a settlement of an obligation for the transfer of book-entry
securities, or the transfer of such securities.
(2) Notwithstanding anything to the contrary in any written law or rule
of law, a transfer or settlement to which this section applies shall not be
liable—
(a) to be reversed, repaid or set aside; or
(b) to an order made by a court for the rectification or stay of such
transfer or settlement.
20. Proceedings of designated systems take precedence
over law of insolvency
(1) None of the following shall be regarded as to any extent invalid on
the ground of inconsistency with the law of insolvency regarding distribution
of the assets of a person on bankruptcy or winding up, or on the appointment
of a liquidator, trustee in bankruptcy or equivalent officer over any of the
assets of a person—
(a) a transfer order;
(b) any disposition of property in pursuance of a transfer order;
(c) the default arrangements of a designated system;
(d ) the operating rules of a designated system as to the settlement of
transfer orders not dealt with under its default arrangements; or
(e) a contract for the purpose of realizing collateral security in
connection with participation in a designated system otherwise
than pursuant to its default arrangements.
(2) The powers of a relevant insolvency office-holder in his capacity as
such and the powers of a court under the law of insolvency, shall not be
exercised in such a way as to prevent or interfere with—
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(a) the settlement of a transfer order in accordance with the
operating rules of a designated system not dealt with under its
default arrangements;
(b) any action taken under the default arrangements of a designated
system; or
(c) any action taken to realize collateral security in connection with
participation in a designated system otherwise than pursuant to
its default arrangements.
(3) A debt or other liability arising out of a transfer order which is the
subject of action taken under default arrangements may not be proved in a
bankruptcy or winding up until the completion of the action taken under
default arrangements.
(4) A debt or other liability which by virtue of subsection (3) may not be
proved shall not be taken into account for the purposes of any set-off until the
completion of the action taken under default arrangements.
21. Abrogation of statutory provisions relating to
disclaimer of property, restriction on
dispositions of property, etc.
Without prejudice to the generality of section 20—
(a) section 59 of the Bankruptcy Ordinance (Cap. 6) and section 268
of the Companies Ordinance (Cap. 32) shall not apply to a
transfer order; and
(b) section 42 of the Bankruptcy Ordinance (Cap. 6) and section 182
of the Companies Ordinance (Cap. 32) shall not apply to a
transfer order or any disposition of property in pursuance of
such an order.
22. Abrogation of statutory powers relating to
adjustment of prior transactions
Without prejudice to the generality of section 20, no order shall be made
by a court under any of the following provisions in respect of a transfer order
or any disposition of property in pursuance of such an order—
(a) section 49 or 50 of the Bankruptcy Ordinance (Cap. 6);
(b) section 266 of the Companies Ordinance (Cap. 32);
(c) section 60 of the Conveyancing and Property Ordinance
(Cap. 219).
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23. Net sum payable on completion of default
arrangements provable in insolvency
proceedings
(1) This section shall apply with respect to any net sum owed by or to a
defaulting participant on the completion of the action taken under default
arrangements.
(2) Where a court has made an order for bankruptcy or winding up of a
participant, or where a resolution for voluntary winding up of a participant
has been passed or a directors’ voluntary winding up statement in respect of a
participant has taken effect, the net sum referred to in subsection (1) shall be—
(a) provable in the bankruptcy or winding up or, as the case may be,
payable to the relevant insolvency office-holder; and
(b) taken into account, where appropriate, under section 35 of the
Bankruptcy Ordinance (Cap. 6) (as regards the bankruptcy) or
under that section as applied under the Companies Ordinance
(Cap. 32) (as regards the winding up).
(3) Subsection (2) applies notwithstanding section 34 or 35 of the
Bankruptcy Ordinance (Cap. 6) and section 264 of the Companies Ordinance
(Cap. 32).
24. Transfer orders entered into designated system after
insolvency not affected
(1) This Division shall not apply in relation to any transfer order given
by a participant in a designated system which is entered into the designated
system after—
(a) the expiry of the day on which—
(i) a court makes an order for bankruptcy or winding up of the
participant;
(ii) a resolution for voluntary winding up of the participant is
passed; or
(iii) a directors’ voluntary winding up statement in respect of the
participant takes effect; or
(b) the receipt by the system operator of notice of the event specified
in paragraph (a),
whichever first occurs.
(2) Reference in subsection (1) to the expiry of the day on which an event
specified in subsection (1)(a) occurs in relation to a participant in a designated
system is a reference to—
(a) the expiry of that day according to Hong Kong time; or
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(b) the expiry of the same calendar day according to local time in
the place where the designated system is established,
whichever is the later.
(3) For the purposes of subsection (1)(b), a system operator shall be
taken to have received notice of an event mentioned in subsection (1)(a) if he
deliberately failed to make enquiries as to that matter in circumstances in
which a reasonable and honest person would have done so.
Division 4—Netting of obligations of insolvent participants
25. Netting may be effected
(1) Where—
(a) a court has made an order for bankruptcy or winding up of a
participant in a designated system;
(b) a resolution for voluntary winding up of a participant in a
designated system has been passed; or
(c) a directors’ voluntary winding up statement in respect of a
participant in a designated system has taken effect,
then, notwithstanding any provision of the law of insolvency, the system
operator of the designated system may effect the netting of all obligations
owed to or by the participant incurred up to the point of time that applies for
the purposes of section 24(1).
(2) Where any netting has been effected as provided in subsection (1),
then—
(a) the obligations that are netted shall be disregarded in the
bankruptcy or winding up proceedings; and
(b) any net obligation owed to or by the participant that has not
been discharged—
(i) is payable to the participant and may be recovered for the
benefit of his creditors; or
(ii) is provable in the bankruptcy or winding up,
as the case may be.
(3) A netting effected as provided in subsection (1) and any payment
made by a participant as provided in subsection (2) shall not be voidable in the
bankruptcy or winding up proceedings.
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Division 5—Miscellaneous
26. Law of insolvency in other jurisdictions
(1) Notwithstanding any law to the contrary, a court shall not recognize
or give effect to—
(a) an order of a court exercising jurisdiction under the law of
insolvency in a place outside Hong Kong; or
(b) an act of a person appointed in a place outside Hong Kong to
perform a function under the law of insolvency there,
in so far as the making of the order or doing of the act would be prohibited
under this Part for a court in Hong Kong or a relevant insolvency officeholder.
(2) In subsection (1), “law of insolvency” (破產清盤法), in relation to a
place outside Hong Kong, means any written law or rule of law of the place
which is concerned with or in any way related to the bankruptcy, winding up
or insolvency of a person.
27. Preservation of rights, etc. in underlying
transactions
(1) This Part shall not operate to limit, restrict or otherwise affect—
(a) any right, title, interest, privilege, obligation or liability of a
person resulting from the underlying transaction in respect of a
transfer order which has been entered into a designated system;
or
(b) any investigation, legal proceedings or remedy in respect of any
such right, title, interest, privilege, obligation or liability.
(2) Nothing in subsection (1) shall be construed to require—
(a) the unwinding of any netting effected by the system operator of
a designated system, whether pursuant to its default
arrangements or otherwise;
(b) the revocation of any transfer order given by a participant which
is entered into a designated system; or
(c) the reversal of a payment or settlement made under the
operating rules of a designated system.
28. Right of relevant insolvency office-holder to recover
gain from transaction at undervalue between 2
participants
(1) This section applies to any transaction between 2 participants in a
designated system that—
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(a) is entered into at an undervalue to the gain of one of the
participants (“first participant”); and
(b) was entered into at any time during the period of 6 months
ending with—
(i) the presentation of a petition for the bankruptcy or winding
up of the other participant (“second participant”) or his
principal;
(ii) the passing of a resolution for voluntary winding up of the
second participant or his principal; or
(iii) the making of a directors’ voluntary winding up statement
in respect of the second participant or his principal.
(2) A relevant insolvency office-holder acting in respect of the second
participant to a transaction to which this section applies or his principal may,
unless a court otherwise orders, recover from the first participant to the
transaction an amount equivalent to the gain made from the transaction.
(3) For the purposes of this section, a transaction is entered into at an
undervalue if it is entered into—
(a) on terms that provide for the second participant or his principal
to receive no consideration; or
(b) for a consideration the value of which, in money or money’s
worth, is less than the value, in money or money’s worth, of the
consideration provided by the second participant or his
principal.
(4) At the request of a system operator or settlement institution of a
designated system the Monetary Authority may, by notice published in the
Gazette, exempt the system operator or settlement institution from the
application of this section; and where such an exemption is in effect this section
shall not apply in respect of any transaction entered into by the system
operator or settlement institution (as the case may be) as first participant in his
capacity as such system operator or settlement institution.
(5) For the avoidance of doubt, nothing in this section has the effect of
derogating from section 20(2) or 22.
29. Right of relevant insolvency office-holder to recover
transfer between 2 participants giving unfair
preference
(1) This section applies to any transfer of funds or securities from one
participant in a designated system to another, being—
(a) a transfer to which section 19 applies (other than a transfer that
forms part of a transaction to which section 28 applies);
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(b) a transfer by which the participant who is the recipient of the
transfer (“first participant”) is given an unfair preference by the
participant making the transfer (“second participant”) or by the
principal of the second participant acting through the second
participant; and
(c) a transfer that is effected at any time during the period of
6 months ending with—
(i) the presentation of a petition for the bankruptcy or winding
up of the second participant or his principal;
(ii) the passing of a resolution for voluntary winding up of the
second participant or his principal; or
(iii) the making of a directors’ voluntary winding up statement
in respect of the second participant or his principal.
(2) A relevant insolvency office-holder acting in respect of the second
participant to a transfer to which this section applies or his principal may,
unless a court otherwise orders, recover from the first participant to the
transfer an amount equivalent to the value of the transfer.
(3) For the purposes of this section, a transfer is a transfer as described
in subsection (1)(b) if—
(a) the first participant is a creditor of, or is a surety or guarantor
for any debts or liabilities of, the second participant or his
principal;
(b) the transfer has the effect of putting the first participant into a
position which, in the event of the bankruptcy or winding up of
the second participant or his principal, will be a better position
than the position he would have been in if the transfer had not
been made; and
(c) the second participant in deciding to make the transfer, or the
second participant’s principal in deciding to cause him to make
the transfer, is influenced by a desire to produce in relation to
the first participant, the effect described in paragraph (b).
(4) At the request of a system operator or settlement institution of a
designated system the Monetary Authority may, by notice published in the
Gazette, exempt the system operator or settlement institution from the
application of this section; and where such an exemption is in effect this section
shall not apply in respect of any transfer effected by the system operator or
settlement institution (as the case may be) as first participant in his capacity as
such system operator or settlement institution.
(5) For the avoidance of doubt, nothing in this section has the effect of
derogating from section 20(2) or 22.
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30. Duty to report on completion
of default proceedings
(1) The system operator and settlement institution of a designated system
shall, not later than 6 days after the completion of any action taken under the
default arrangements of the system in respect of a defaulting participant,
together prepare in writing and give to the persons specified in subsection (3) a
report (“default proceedings report”) on such action taken.
(2) A default proceedings report—
(a) shall state the net sum (if any) certified by the system operator or
settlement institution to be payable by or to the defaulting
participant, or the fact that no sum is so payable (as the case
may be); and
(b) may contain such other particulars in respect of the action taken
as the system operator and settlement institution consider
appropriate.
(3) The persons specified for the purposes of subsection (1) are—
(a) the Monetary Authority; and
(b) any relevant insolvency office-holder acting in relation to the
defaulting participant to whom the report relates or that
defaulting participant’s estate or, if there is no such relevant
insolvency office-holder, the defaulting participant to whom the
report relates.
(4) Where the Monetary Authority receives pursuant to subsection (1) a
default proceedings report he may publish notice of that fact in such manner as
he considers appropriate to bring it to the attention of creditors of the
defaulting participant to whom the report relates.
(5) A relevant insolvency office-holder or defaulting participant who has
received pursuant to subsection (1) a default proceedings report, shall, if so
requested by a creditor of the defaulting participant to whom the report
relates—
(a) make the report (or a copy of it) available for inspection by the
creditor; and
(b) supply to the creditor all or any part of that report (or a copy of
it), subject to receipt of payment of such reasonable fee as the
relevant insolvency office-holder or defaulting participant (as the
case may be) determines.
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31. Obligation of participant to notify of
bankruptcy or winding up
(1) A participant in a designated system shall notify the system operator
of the system and the Monetary Authority forthwith if there comes to his
knowledge any of the following circumstances occurring in Hong Kong, or any
analogous circumstances occurring outside Hong Kong, namely—
(a) the presentation of a petition for the bankruptcy or winding up
of the participant;
(b) the making of an order for bankruptcy or winding up of the
participant;
(c) the passing of a resolution for voluntary winding up of the
participant; or
(d ) the making of a directors’ voluntary winding up statement in
respect of the participant.
(2) A failure by a participant to notify a system operator or the
Monetary Authority of a relevant event referred to in subsection (1) within the
time required under that subsection is not a contravention of that subsection if
the system operator or Monetary Authority (as the case may be) was already
aware of the relevant event by that time.
32. Order releasing relevant insolvency office-holder
from obligations in relation to default proceedings
A court may, on an application by a relevant insolvency office-holder,
make such order as it considers appropriate altering or releasing him from
compliance with the functions of his office to the extent that those functions
are affected by the fact that action under default arrangements is being or
could be taken, or has been or could have been taken.
33. Enforcement of judgments over property of
participant as judgment debtor
(1) This section applies to any property of a participant in a designated
system that—
(a) has been provided as collateral security in favour of a system
operator or settlement institution of the system; and
(b) is held by or deposited with that system operator or settlement
institution for the purpose of securing liabilities arising directly
in connection with the clearing or settlement of those transfer
orders issued by the participant.
(2) Except with the consent of the system operator or settlement
institution mentioned in subsection (1)—
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(a) no execution or other legal process for the enforcement of a
judgment or order shall be commenced or continued; and
(b) no distress shall be levied,
in respect of property to which this section applies; but this subsection does not
apply to a person seeking to enforce any interest in or security over the
property.
(3) Where by virtue of subsection (2) a person would not be entitled to
enforce a judgment or order against any property, any injunction or other
remedy granted with a view to facilitating the enforcement of any such
judgment or order shall not extend to that property.
PART 4
APPEALS TRIBUNAL
34. Establishment of Clearing and Settlement Systems
Appeals Tribunal
(1) There is established by this section a tribunal to be known as the
“Clearing and Settlement Systems Appeals Tribunal” in English and “結算及交
收系統上訴審裁處” in Chinese.
(2) For the purpose of reviewing any decision referred to the Tribunal
under this Part, the Tribunal is to consist of—
(a) the Chairman of the Tribunal; and
(b) such number of persons, not being fewer than 2, from the panel
referred to in subsection (4) as the Financial Secretary may, on
the recommendation of the Chairman of the Tribunal, appoint
for that purpose.
(3) The Chief Executive shall, on the recommendation of the Chief
Justice, appoint to be the Chairman of the Tribunal a person who is—
(a) a judge, or a deputy judge, of the Court of First Instance;
(b) a former Justice of Appeal of the Court of Appeal; or
(c) a former judge, or a former deputy judge, of the Court of First
Instance.
(4) The Chief Executive shall appoint a panel of persons, not being
public officers, whom he considers suitable for appointment as members of the
Tribunal.
(5) The Chairman of the Tribunal (except where the Chairman is a judge,
or a deputy judge, of the Court of First Instance), and members, of the
Tribunal may be paid, as a fee for their services, such amount as the Chief
Executive considers appropriate. Those amounts payable to the Chairman of
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the Tribunal shall be a charge on the general revenue, and those amounts
payable to the members shall be a charge on the Exchange Fund established
under section 3 of the Exchange Fund Ordinance (Cap. 66).
(6) Schedule 1 has effect with respect to the Tribunal.
(7) Subject to this section and Schedule 1 and to rules made under
section 40, the Chairman of the Tribunal may determine the procedures and
practice of the Tribunal.
35. Review of decisions by Tribunal
(1) Any person who is aggrieved by a decision of the Monetary
Authority under section 4(1), 5(1), 16(1) or 17(1) may refer the decision to the
Tribunal for review.
(2) A reference to the Tribunal under subsection (1) by a person
aggrieved is—
(a) to be made in writing;
(b) to be made—
(i) if the reference relates to a decision of the Monetary
Authority under section 4(1) or 5(1), within 30 days after
publication in the Gazette of the notice referred to in that
section;
(ii) if the reference relates to a decision of the Monetary
Authority under section 16(1) or 17(1), within 30 days after
receiving notice in writing given by the Monetary Authority
informing him of the decision,
or within such further time as the Tribunal may, in the
circumstances of any particular case, think fit; and
(c) to state the grounds for the review.
(3) The Tribunal shall deliver to the Monetary Authority a copy of any
reference under subsection (1) that it has received.
(4) A reference under subsection (1) does not suspend the decision to
which the reference relates.
(5) As soon as practicable after receipt of a copy of a reference delivered
under subsection (3), the Monetary Authority shall forward a copy of the
decision to which the reference relates together with all other relevant papers in
his possession to the Tribunal.
(6) On receipt of the copy of the decision, and of the papers, forwarded
under subsection (5), the Tribunal shall review the decision in question and,
after taking into account the stated grounds for the review, may make its
determination to—
(a) confirm, vary or set aside the decision; or
(b) remit the matter to the Monetary Authority with any direction
that it considers appropriate.
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(7) In reviewing a decision of the Monetary Authority, the Tribunal—
(a) shall afford both the applicant and the Monetary Authority an
opportunity of being heard; and
(b) may determine that any matter of fact has been established if it
has been established on the balance of probabilities.
(8) As soon as practicable after completing the review, the Tribunal shall
deliver its determination made under subsection (6), with the reasons for its
determination.
(9) A determination made by the Tribunal shall be recorded in writing
and signed by the Chairman of the Tribunal, and shall then be registered in the
Court of First Instance; and a determination so registered shall be deemed to
be an order of the Court.
(10) The determination of the Tribunal is final and is not subject to appeal
except on a point of law.
(11) For the purposes of any proceedings in a court of law, a document
purporting to be a determination of the Tribunal that is signed by the
Chairman of the Tribunal shall, in the absence of evidence to the contrary, be
regarded as a determination of the Tribunal duly made, without proof of its
making, or proof of signature, or proof that the person signing the
determination was in fact the Chairman of the Tribunal.
36. Powers of Tribunal
(1) In relation to a review of a decision of the Monetary Authority under
this Ordinance, the Tribunal may—
(a) receive and consider any material by way of oral evidence,
written statements or documents, whether or not the material
would be admissible in a court of law;
(b) determine the manner in which any such material is received;
(c) by notice in writing signed by the Chairman of the Tribunal,
require a person to attend before it and, subject to subsection
(2), to give evidence and produce any article, record or
document in his possession or control relating to the subject
matter of the review;
(d ) administer oaths;
(e) examine or cause to be examined on oath or otherwise a person
attending before it and require the person to answer truthfully
any question which the Tribunal considers appropriate for the
purpose of the review;
( f ) order a witness to provide evidence for the purpose of the review
by affidavit;
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(g) order a person not to publish or otherwise disclose any material
produced to the Tribunal;
(h) prohibit the publication or disclosure of any material the
Tribunal receives at any sitting, or any part of a sitting, that is
held in camera;
(i) stay any of the proceedings in the review on such grounds and
on such terms and conditions as it considers appropriate having
regard to the interests of justice;
( j ) determine the procedure to be followed in connection with the
review;
(k) order that costs be paid to any party to the review or any person
who is required to attend before it for the purpose of the review;
(l) hear an application for stay of proceedings for a review at any
time before its determination is made; and
(m) exercise such other powers or make such other orders as may be
necessary for or ancillary to the conduct of the review or the
performance of its functions.
(2) Nothing in subsection (1)(c), (e) or ( f ) empowers the Tribunal to
require—
(a) the banker or financial adviser of an applicant to disclose any
information relating to the affairs of any person other than the
applicant; or
(b) a solicitor or counsel to disclose any privileged communication,
whether oral or written, made to or by him in that capacity.
(3) No person shall—
(a) fail to comply with an order, notice, prohibition or requirement of
the Tribunal made or given under or pursuant to subsection (1);
(b) disrupt any sitting of the Tribunal or otherwise misbehaves
during any such sitting;
(c) having been required by the Tribunal under subsection (1) to
attend before the Tribunal, leave the place where his attendance
is so required without the permission of the Tribunal;
(d ) hinder or deter any person from attending before the Tribunal,
giving evidence or producing any article, record or document,
for the purpose of a review;
(e) threaten, insult or cause any loss to be suffered by any person
who has attended before the Tribunal, on account of such
attendance; or
( f ) threaten, insult or cause any loss to be suffered by the Chairman,
or any member, of the Tribunal at any time on account of the
performance of his functions in that capacity.
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(4) A person is not excused from complying with an order, notice,
prohibition or requirement of the Tribunal made or given under or pursuant to
subsection (1) only on the ground that to do so might tend to incriminate the
person.
37. Use of incriminating evidence given
under compulsion
Notwithstanding any other provisions of this Ordinance, where the
Tribunal—
(a) requires a person to give evidence under section 36(1)(c);
(b) requires a person to answer any question under section 36(1)(e);
(c) orders a person to provide evidence under section 36(1)( f ); or
(d ) otherwise requires or orders a person to provide any information
under section 36(1)(m),
and the evidence, answer or information might tend to incriminate the person,
then the requirement or order as well as the evidence, the question and answer,
or the information shall not be admissible in evidence against the person in
criminal proceedings in a court of law other than those in which the person is
charged with an offence under section 36(3)(a), or under Part V of the Crimes
Ordinance (Cap. 200), or for perjury, in respect of the evidence, answer or
information.
38. Contempt dealt with by Tribunal
(1) The Tribunal has the same powers as the Court of First Instance to
punish for contempt.
(2) Without limiting the generality of the powers of the Tribunal under
subsection (1), the Tribunal has the same powers as the Court of First Instance
to punish for contempt, as if it were contempt of court, a person who, without
reasonable excuse, commits any conduct falling within section 36(3).
(3) The Tribunal shall, in the exercise of its powers to punish for
contempt under this section, adopt the same standard of proof as the Court of
First Instance in the exercise of the same powers to punish for contempt.
(4) Notwithstanding anything in this section or any other provision of
this Ordinance, no power may be exercised under or pursuant to this section to
determine whether to punish any person for contempt in respect of any
conduct in the following case, namely—
(a) if criminal proceedings have previously been instituted against
the person under section 36(3) in respect of the same conduct;
and
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(b) if—
(i) those criminal proceedings remain pending; or
(ii) by reason of the previous institution of those criminal
proceedings, no criminal proceedings may again be lawfully
instituted against that person under that section in respect
of the same conduct.
(5) Notwithstanding anything in this section or any other provision of
this Ordinance, no criminal proceedings may be instituted against any person
under section 36(3) in respect of any conduct in the following case, namely—
(a) if any power has previously been exercised under or pursuant to
this section to determine whether to punish the person for
contempt in respect of the same conduct; and
(b) if—
(i) proceedings arising from the exercise of such power remain
pending; or
(ii) by reason of the previous exercise of such power, no power
may again be lawfully exercised under or pursuant to this
section to determine whether to punish the person for
contempt in respect of the same conduct.
39. Appeal to Court of Appeal
(1) An applicant or the Monetary Authority may, if dissatisfied with a
determination delivered under section 35(8), appeal to the Court of Appeal
against the determination on a point of law.
(2) Where an appeal has been lodged under subsection (1) the Court of
Appeal may, on application made to it, order a stay of execution of the
determination of the Tribunal, subject to such conditions as to costs, payment
of money into the Tribunal or otherwise as the Court of Appeal considers
appropriate; but the lodging of an appeal under subsection (1) does not of
itself operate as a stay of execution of the determination of the Tribunal.
(3) The Court of Appeal may affirm, set aside or vary the determination
appealed against, or may remit the matter in question to the Tribunal with
such directions as it considers appropriate.
(4) The Rules of the High Court (Cap. 4 sub. leg. A) apply in relation to
such an appeal to the extent that those Rules are not inconsistent with this
Ordinance.
(5) In an appeal under this section, the Court of Appeal may make such
order for payment of costs as it considers appropriate.
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40. Power of Chief Justice to make rules
The Chief Justice may make rules—
(a) providing for matters of procedure, or other matters, relating to
requests for review, or reviews, under this Part, which are not
provided for in this Part or section 4 of Schedule 1;
(b) providing for the issue or service of any document (however
described) for the purposes of this Part or section 4 of
Schedule 1; or
(c) prescribing anything required to be prescribed under this Part or
section 4 of Schedule 1.
PART 5
OFFENCES
41. Contravention of provisions of Part 2
(1) A person who, without reasonable excuse, contravenes section 6(1)
commits an offence and is liable—
(a) on conviction upon indictment, to a fine of $400,000 and to
imprisonment for 2 years; and
(b) in the case of a continuing offence, to a further fine of $10,000
for every day during which the offence continues.
(2) A person who, without reasonable excuse, contravenes section 6(2)
commits an offence and is liable—
(a) on conviction upon indictment, to a fine of $400,000; and
(b) in the case of a continuing offence, to a further fine of $10,000
for every day during which the offence continues.
(3) Where there is a contravention of a requirement set out in section 7(1)
as regards any designated system, every system operator and settlement
institution of the system commits an offence and is liable on conviction upon
indictment to a fine of $400,000.
(4) A person who contravenes section 7(3) commits an offence and is
liable on conviction upon indictment to a fine of $400,000.
(5) A person who fails to comply with a request made under section 12(1)
commits an offence and is liable—
(a) on conviction upon indictment, to a fine of $400,000 and to
imprisonment for 2 years; and
(b) in the case of a continuing offence, to a further fine of $10,000
for every day during which the offence continues.
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(6) A person who fails to comply with a direction given under
section 13(1) commits an offence and is liable—
(a) on conviction upon indictment, to a fine of $400,000 and to
imprisonment for 2 years; and
(b) in the case of a continuing offence, to a further fine of $10,000
for every day during which the offence continues.
(7) It is a defence for a person charged with an offence under subsection
(3), (5) or (6) to prove that—
(a) the requirement, request or direction (as the case may be) to
which the charge relates concerns an aspect of the management
or operations of the designated system other than an aspect for
which the person is responsible; or
(b) he took all reasonable steps to ensure that the requirement,
request or direction (as the case may be) to which the charge
relates was complied with.
42. Contravention of provisions of Part 3
(1) A person who contravenes section 30(1) commits an offence and is
liable on conviction upon indictment to a fine of $200,000 and to
imprisonment for 1 year.
(2) A person who contravenes section 31 commits an offence and is liable
on conviction upon indictment to a fine of $400,000 and to imprisonment for
2 years.
43. Contravention of provision of Part 4
A person who, without reasonable excuse, contravenes section 36(3)
commits an offence and is liable on conviction upon indictment to a fine of
$1,000,000 and to imprisonment for 2 years.
44. Contravention of provisions of Part 6
(1) A person who contravenes section 50(1) commits an offence and is
liable on conviction upon indictment to a fine of $1,000,000 and to
imprisonment for 2 years.
(2) A person who, knowing that a condition referred to in section 50(5)
has been attached to a disclosure of information made pursuant to section 50(3)
or (4), contravenes, or aids, abets, counsels or procures any person to
contravene, that condition commits an offence and is liable on conviction upon
indictment to a fine of $1,000,000 and to imprisonment for 2 years.
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(3) A person who, without reasonable excuse, fails to comply with a
request made under section 52(1) commits an offence and is liable on
conviction upon indictment to a fine of $200,000 and to imprisonment for
1 year.
(4) A person who, without reasonable excuse, contravenes section 53(4)
commits an offence and is liable on conviction upon indictment to a fine of
$400,000 and to imprisonment for 2 years.
45. Giving false information to Monetary Authority
A person who, in giving information to the Monetary Authority in
pursuance of an obligation under Part 2 or section 31—
(a) gives information that is false or misleading in a material
particular; and
(b) knows or ought to know that the information being given is false
or misleading,
commits an offence and is liable on conviction upon indictment to a fine of
$400,000 and to imprisonment for 2 years.
46. Misrepresentation in respect of designated system
(1) A person shall not describe or otherwise make any representation in
respect of a clearing and settlement system that is not a designated system in
terms that indicate, or that could reasonably be construed as indicating, that
the system is a designated system.
(2) It is a defence for a person charged with an offence under subsection
(1) to prove that he reasonably believed that the system was a designated
system.
(3) A person shall not describe or otherwise make any representation in
respect of a clearing and settlement system in respect of which a certificate of
finality is not in effect in terms that indicate, or that could reasonably be
construed as indicating, that a certificate of finality is in effect in respect of the
system.
(4) It is a defence for a person charged with an offence under subsection
(3) to prove that he reasonably believed that a certificate of finality was in
effect in respect of the system.
(5) Subsections (1) and (3) do not apply in relation to any description or
representation contained in information submitted to the Monetary Authority
under this Ordinance.
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(6) Any person who contravenes subsection (1) or (3) commits an offence
and is liable on conviction upon indictment to a fine of $400,000 and to
imprisonment for 2 years.
47. False entry in document
(1) A person commits an offence if, wilfully and with intent to deceive,
he does any act mentioned in subsection (2) and that act results in any
information contained in the book of record or relevant document in question
being incorrect or misleading in a material respect.
(2) A person does an act referred to in subsection (1) if he—
(a) makes, or causes to be made, an entry that he knows or ought
reasonably to know to be false in any book of record or in any
relevant document relating to a designated system;
(b) omits to make an entry in any book of record or in any relevant
document relating to a designated system; or
(c) alters, abstracts, conceals or destroys an entry in any book of
record or in any relevant document relating to a designated
system, or causes any such entry to be altered, abstracted,
concealed or destroyed.
(3) A person who commits an offence under subsection (1) is liable on
conviction upon indictment to a fine of $1,000,000 and to imprisonment for
5 years.
(4) In this section, “relevant document relating to a designated system”
(關乎指定系統的有關文件) means any report, slip, document or statement of the
business, affairs, transactions, condition, assets or accounts of a designated
system.
48. Liability of company officers
Where an offence under section 41(1), (3), (4), (5) or (6), 42(1) or (2), 44(4)
or 45 of this Ordinance is committed by a corporation and—
(a) in committing the offence the corporation is aided, abetted,
counselled, procured or induced by an officer of the corporation
or a person purporting to act as such; or
(b) the offence is committed with the consent or connivance of, or is
attributable to any recklessness on the part of, an officer of the
corporation or a person purporting to act as such,
then that officer of the corporation or person purporting to act as such (as well
as the corporation) commits the offence and is liable to be proceeded against
and punished accordingly.
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PART 6
MISCELLANEOUS
49. Power of Monetary Authority to make regulations
(1) The Monetary Authority may, after consultation with the Financial
Secretary and with the system operators and settlement institutions of
designated systems, make regulations for the better carrying out of the
purposes of this Ordinance.
(2) In particular, regulations made under subsection (1) may provide for
all or any of the following—
(a) measures to be put in place within a designated system for the
purposes of monitoring and enforcing compliance with the
operating rules of the system and the provisions of this Ordinance;
(b) measures in relation to the availability to a designated system of
financial resources;
(c) matters to be provided for under the operating rules of a
designated system, including matters conducive to the better
safety and efficiency of the system;
(d ) any other matter necessary or desirable for the better safety and
efficiency of operation and financial soundness of designated
systems;
(e) any matter that shall or may be prescribed under this Ordinance.
(3) Regulations made for the purpose of this section—
(a) may be of general or special application and may apply only in
specified circumstances;
(b) may make different provisions for different circumstances and
provide for different cases or classes of cases; and
(c) may provide for the exercise of discretion in such cases as may
be specified in those regulations.
50. Confidentiality
(1) Except in so far as is necessary for the performance of any function
under this Ordinance or for carrying into effect any provision of this
Ordinance, every person to whom this subsection applies—
(a) shall preserve and aid in preserving secrecy with regard to all
matters relating to the affairs of any person that come to his
knowledge in the performance of any function under this
Ordinance;
(b) shall not communicate any such matter to any person other than
the person to whom such matter relates; and
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(c) shall not suffer or permit any person to have access to any
records in his possession, custody or control.
(2) Subsection (1) applies to—
(a) the Monetary Authority and any person appointed by the
Financial Secretary under section 5A(3) of the Exchange Fund
Ordinance (Cap. 66) to assist the Monetary Authority; and
(b) any person appointed by the Monetary Authority under
section 9(3).
(3) Subsection (1) does not apply—
(a) to the disclosure of information in summary form that is so
framed as to prevent particulars relating to the business of any
particular system or person being ascertained from it;
(b) to the disclosure of information—
(i) with a view to the institution of, or otherwise for the
purpose of, any criminal proceedings, whether under this
Ordinance or otherwise; or
(ii) in connection with any other legal proceedings arising out
of this Ordinance;
(c) to the disclosure of information to the police or the Independent
Commission Against Corruption, at the request of the Secretary
for Justice, relevant to the proper investigation of any criminal
complaint;
(d ) to the disclosure of information to the Chief Executive or the
Financial Secretary for the purpose of enabling or assisting the
Monetary Authority to perform his functions under this Ordinance;
(e) to the disclosure of information to any person within the
category of persons specified in subsection (2), where the
disclosure will enable or assist that person to assist the Monetary
Authority in the performance of any of the functions referred to
in section 5A(2) of the Exchange Fund Ordinance (Cap. 66);
( f ) to the disclosure of information to the Tribunal;
(g) to the disclosure of information to any person or body who may
be appointed or established by the Chief Executive to review
processes or procedures adopted by the Monetary Authority in
making decisions under this Ordinance in so far as those
decisions relate to or affect the designated systems specified in
Schedule 2 or designated systems in which the Monetary
Authority has a legal or beneficial interest;
(h) to the disclosure of information with the consent of the person
from whom the information was obtained or received or, where
the information does not relate to such person, with the consent
of the person to whom it relates; or
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(i)
to the disclosure of information which has been made available
to the public by virtue of being disclosed in any circumstances in
which, or for any purpose for which, disclosure is not precluded
by this section.
(4) Subsection (1) does not apply to any disclosure of information, being
a disclosure that is not contrary to the public interest, of the following
description—
(a) disclosure of information to the Securities and Futures
Commission referred to in section 3(1) of the Securities and
Futures Ordinance (Cap. 571) if, in the opinion of the Monetary
Authority, such disclosure will assist the Securities and Futures
Commission in exercising its functions; or
(b) disclosure of information to an authority in a place outside
Hong Kong exercising in that place functions similar to the
functions of the Monetary Authority under this Ordinance,
being an authority that is subject to secrecy provisions in that
place that in the opinion of the Monetary Authority are adequate,
if in the opinion of the Monetary Authority such disclosure will—
(i) assist that authority in exercising those functions; and
(ii) help maintain and promote safety and efficiency in the
operation of designated systems.
(5) The Monetary Authority may attach to any disclosure of information
to a person made pursuant to subsection (3)(b), (c), (d ), (e), ( f ) or (g) or (4) a
condition that neither the person to whom the information has been disclosed
nor any person obtaining or receiving the information (whether directly or
indirectly) from such person shall disclose that information to any other
person without the consent of the Monetary Authority.
51. Immunity
(1) No civil liability shall be incurred by any of the following persons as
a result of anything done or omitted to be done by him in good faith in the
exercise or purported exercise of any functions conferred or imposed by or
under this Ordinance, namely—
(a) any public officer;
(b) any person appointed under section 5A(3) of the Exchange Fund
Ordinance (Cap. 66) to assist the Monetary Authority; or
(c) any person appointed under section 9(3).
(2) No civil liability shall be incurred by any of the following persons as
a result of anything done or omitted to be done by him in good faith in the
carrying out or purported carrying out of any directions given to him by the
Monetary Authority, namely—
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(a) any system operator or settlement institution of a designated
system, or any employee of such person; and
(b) in addition, where the system operator or settlement institution
of a designated system is a corporation, any officer of the
corporation.
52. Power of Monetary Authority to require
information to be given
(1) Where there are reasonable grounds for believing that a clearing and
settlement system exists, but the Monetary Authority is unable on the basis of
the information before him to determine whether the system is eligible to be
designated or, if eligible to be, should be designated under this Ordinance, the
Monetary Authority may by notice in writing request any person who is or
whom he reasonably believes to be a system operator or settlement institution
of the system or a participant in the system, to give the Monetary Authority
such information or documents regarding the system as the Monetary
Authority considers may assist him in making that determination.
(2) A request under subsection (1)—
(a) shall specify the information or documents to be given; and
(b) may specify a period, being a period that is reasonable in the
circumstances, within which the information or documents shall
be given.
(3) This section applies to and in relation to—
(a) a clearing and settlement system that is established in a place
outside Hong Kong;
(b) an individual who is outside Hong Kong; or
(c) a corporation that is incorporated in a place outside Hong
Kong,
as it applies to and in relation to such a clearing and settlement system that is
established in Hong Kong, such an individual who is in Hong Kong, or such a
corporation that is incorporated in Hong Kong.
53. Requirement to give information
relating to default
(1) Where any action has been taken under the default arrangements of
a designated system in respect of a participant in the system, the Monetary
Authority may, by notice in writing given to the system operator or settlement
institution of the system, direct the system operator or settlement institution to
give to any person who has responsibility for any matter arising out of or
connected with the default of the participant (“nominated official”) such
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information as the nominated official may request relating to that default or to
any matter arising out of or connected with that default.
(2) A notice given under subsection (1) shall specify the nominated
official and the participant to whom the direction relates.
(3) A request for information made by a nominated official shall be in
writing and shall state—
(a) the information requested; and
(b) a period, being a period that is reasonable in the circumstances,
within which the information shall be given.
(4) A system operator or settlement institution to whom a request is
made in accordance with subsection (3) shall comply with the request by giving
the information to the nominated official within the period specified.
54. Guidelines
(1) The Monetary Authority may, for the purpose of making available
relevant information, after consultation with the system operators and
settlement institutions of designated systems, issue guidelines setting out the
manner in which he proposes to exercise any power conferred or duty imposed
on him, or to perform any function assigned to him, under this Ordinance.
(2) The Monetary Authority shall publish in the Gazette any guidelines
issued by him under this section.
55. Systems deemed to have been designated
(1) The clearing and settlement systems specified in Schedule 2 shall be
deemed to have been designated for the purposes of this Ordinance under
section 4(1).
(2) It shall also be deemed that a certificate of finality has been issued in
respect of each of the systems referred to in subsection (1).
56. Service of notices
(1) A notice that is to be or may be given to any person by the Monetary
Authority under this Ordinance is taken to have been given if it is given
according to the following—
(a) the notice may be delivered to him (if the person is an individual)
or to any officer of the corporation (if the person is a
corporation) by hand;
(b) if a place of business has been given by the person under section
6(1)(a), the notice may be left at that place;
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(c) if a postal address has been given by the person under section
6(1)(a), the notice may be sent by post to that address; or
(d ) if an electronic mail address has been given by the person under
section 6(1)(a), the notice may be sent by electronic mail
transmission to that electronic mail address.
(2) A notice taken to have been given under subsection (1)(b), (c) or (d )
shall be taken to be given, and as coming to the notice of the person to whom
it is given, at the following time—
(a) if the notice is left at the place of business given under section
6(1)(a), when it is so left;
(b) if the notice is sent by post to the postal address given under
section 6(1)(a), when it would in the ordinary course of post be
delivered to that address; or
(c) if the notice is sent by electronic mail transmission to the
electronic mail address given under section 6(1)(a), when it
would in the ordinary course of such transmission be received at
that address.
(3) In this section, reference to a notice being given includes reference to
any notice, any document or information of any kind being given, served, sent
or provided.
57. Amendment of Schedules
The Chief Executive in Council may, by notice published in the Gazette,
amend Schedule 1 or 2.
58. Notices, etc. as subsidiary legislation
(1) A notice published in the Gazette under section 1(2) or 57 is
subsidiary legislation for the purpose of section 34 of the Interpretation and
General Clauses Ordinance (Cap. 1).
(2) Except as provided in subsection (1), a notice or guideline published
in the Gazette under this Ordinance is not subsidiary legislation for the
purpose of section 34 of the Interpretation and General Clauses Ordinance
(Cap. 1).
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Consequential Amendments
Electronic Transactions Ordinance
59. Proceedings in relation to which sections 5, 5A,
6, 7 and 8 of this Ordinance do not apply
under section 13(1) of this Ordinance
Schedule 2 to the Electronic Transactions Ordinance (Cap. 553) is
amended—
(a) in paragraph (zn), by repealing “；或” and substituting a
semicolon;
(b) in paragraph (zo), by repealing the full stop and substituting a
semicolon;
(c) by adding—
“(zp) the Clearing and Settlement Systems Appeals Tribunal
established under the Clearing and Settlement Systems
Ordinance (20 of 2004).”.
SCHEDULE 1
[ss. 34, 40 & 57]
PROVISIONS RELATING TO CLEARING AND SETTLEMENT
SYSTEMS APPEALS TRIBUNAL
1.
Interpretation
In this Schedule—
“panel member” (小組成員) means a member of the panel referred to in section 34(4) of this
Ordinance;
“parties” (各方), in relation to a review of a decision of the Monetary Authority, means the
applicant and the Monetary Authority;
“Tribunal member” (審裁處成員) means a member of the Tribunal appointed under section
34(2)(b) of this Ordinance.
2.
Tenure of Chairman of the Tribunal
(1) The Chairman of the Tribunal shall be appointed for a term not exceeding 3 years.
(2) On the expiry of his period of appointment or reappointment, the Chairman of the
Tribunal is eligible for reappointment for such further term as the Chief Executive may specify.
(3) The Chairman of the Tribunal may resign from office by giving notice in writing to the
Chief Executive. A notice of resignation takes effect on the date specified in the notice or, if no
date is specified, on the date of receipt by the Chief Executive of the notice.
(4) If the Chief Executive is satisfied that the Chairman of the Tribunal—
(a) has become bankrupt;
(b) is incapacitated by physical or mental illness; or
(c) is otherwise unable or unfit to perform the functions of the Chairman of the
Tribunal,
the Chief Executive may, after consultation with the Chief Justice, declare his office as Chairman
of the Tribunal to be vacant, and shall notify the fact in such manner as the Chief Executive thinks
fit; and upon such declaration the office becomes vacant.
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(5) If a review has been commenced by the Tribunal but not completed before the expiry of
the term of office of the Chairman of the Tribunal, the Chief Executive may extend the term of
office of the Chairman until the completion of the review.
3.
Tenure of panel members
(1) A panel member shall be appointed for a term not exceeding 3 years.
(2) On the expiry of his period of appointment or reappointment, a panel member is eligible
for reappointment for such further term as the Chief Executive may specify.
(3) A panel member may resign from office by giving notice in writing to the Chief
Executive. A notice of resignation takes effect on the date specified in the notice or, if no date is
specified, on the date of receipt by the Chief Executive of the notice.
(4) If the Chief Executive is satisfied that a panel member—
(a) has become bankrupt;
(b) is incapacitated by physical or mental illness;
(c) is otherwise unable or unfit to perform the functions of a Tribunal member; or
(d ) has become a public officer,
the Chief Executive may declare his office as panel member to be vacant, and shall notify the fact
in such manner as the Chief Executive thinks fit; and upon such declaration the office becomes
vacant.
4.
Sittings
(1) The Chairman of the Tribunal shall convene such sittings of the Tribunal as are
necessary to determine a review.
(2) Before convening a sitting under subsection (1) in respect of a review, the Chairman of
the Tribunal may give directions to the parties to the review concerning—
(a) procedural matters to be complied with by any of the parties; and
(b) the time within which such procedural matters are to be complied with.
(3) At a sitting of the Tribunal—
(a) the Chairman of the Tribunal shall preside;
(b) not fewer than 2 Tribunal members shall also be present; and
(c) every question before the Tribunal shall be determined by the opinion of the
majority of those referred to in paragraphs (a) and (b) except a question of law
which shall be determined by the Chairman of the Tribunal alone.
(4) Every sitting of the Tribunal shall be held in public unless the Tribunal, on its own
motion or on the application of any of the parties to the review, determines that in the interests of
justice a sitting, or any part of a sitting, shall not be held in public in which case it may hold the
sitting, or the relevant part of the sitting, as the case may be, in camera.
(5) If an application is made pursuant to subsection (4) for a determination that a sitting, or
any part of a sitting, shall not be held in public, a hearing of the application shall be held in
camera.
(6) The parties to a review shall, at any sitting of the Tribunal relating to the review, be
entitled to be heard—
(a) in person or, in the case of the Monetary Authority, through a person appointed
under section 5A(3) of the Exchange Fund Ordinance (Cap. 66) to assist the
Monetary Authority; or
(b) through counsel or a solicitor or, with the leave of the Tribunal, through any other
person.
(7) The Chairman of the Tribunal shall prepare or cause to be prepared a record of the
proceedings at any sitting of the Tribunal, which shall contain such particulars relating to the
proceedings as he considers appropriate.
5.
Miscellaneous
Except as otherwise provided in this Ordinance—
(a) the Tribunal, its Chairman and its members; and
CLEARING AND SETTLEMENT SYSTEMS
ORDINANCE
Ord. No. 20 of 2004
A929
(b) the parties to, and any witness, counsel, solicitor, or any other person involved in, a
review,
shall have the same privileges and immunities in respect of the review as they would have if the
review were civil proceedings before the Court of First Instance.
——————————
SCHEDULE 2
CLEARING
AND SETTLEMENT SYSTEMS
TO HAVE BEEN DESIGNATED
1.
2.
[ss. 50, 55 & 57]
DEEMED
Central Moneymarkets Unit.
Hong Kong Dollar Clearing House Automated Transfer System.